United States District Court, D. Kansas
NICOLE POTTER, Heir at law of BEVERLY RETZLAFF, deceased, et al. Plaintiffs,
WAGNER'S CARNIVAL, LLC, et al. Defendants.
MEMORANDUM AND ORDER
J. James U.S. Magistrate Judge
February 20, 2019, the Court conducted a status conference
with the parties in accordance with the Scheduling Order (ECF
No. 16). Plaintiffs appeared through counsel, Dustin L.
DeVaughn. Defendants appeared through counsel, Brian J.
Niceswanger. The Court discussed the following with the
parties: Plaintiffs' Motion to Compel Discovery Responses
(ECF No. 23); Defendants' Motion for Enlargement of Time
to File Designations of Comparative Fault (ECF No. 34); and
Plaintiffs' request to take a Rule 30(b)(6) deposition of
Wagner's Carnival, LLC's corporate representative.
This order memorializes the Court's oral rulings made
during the conference as well as the Court's guidance
provided to the parties.
case involves claims of personal injury and wrongful death.
Plaintiffs allege Defendant Denise Wagner (“Mrs.
Wagner”) was driving a truck that was pulling a trailer
owned by Defendant Wagner's Carnival, LLC (“the
Carnival”). Plaintiffs claim a tire dislodged from the
trailer and went through the windshield of Beverly
Retzlaff's car, striking her and ultimately causing her
August 24, 2018, Plaintiffs served their first discovery
requests on Defendants.Around that time and over the next few
months, Mrs. Wagner's husband, father, and sister died.
Mrs. Wagner was also “on the road” with the
Carnival and did not return home until December
2018. It is undisputed that the parties had
multiple communications about Mrs. Wagner's personal
circumstances and the status of the discovery responses.
After still receiving no responses to their discovery
requests, Plaintiffs filed their motion to compel on January
9, 2019. Defendants originally opposed the motion, arguing
Plaintiffs failed to properly meet and confer as required
because Plaintiffs didn't say they were filing a motion
to compel until the day before filing. Later, on
February 12, 2019, Defendants filed a sur-reply indicating
they had filed their answers and responses to Plaintiffs'
discovery requests on January 17, 2019, and then submitted
their supplemental responses on February 5,
2019. Therefore, Defendants believed
Plaintiffs' motion to compel was moot.
February 13, 2019, the parties submitted short summaries of
issues to be discussed at the February 20, 2019 status
conference. Specifically, Plaintiffs intended to take three
depositions: Mrs. Wagner, an employee of the Carnival, and
the Carnival's Rule 30(b)(6) designee. Defendants object
to the 30(b)(6) deposition because they claim the trailer is
not owned by the Carnival but rather by Mrs. Wagner. They
further argue Mrs. Wagner was not an employee of the Carnival
at the time of the accident.
on February 15, 2019, Defendants filed a motion for extension
of time to file their designations of comparative fault. The
same day, which was the deadline included in the Court's
scheduling order, they filed preliminary designations of
February 20, 2019 Status Conference Rulings
the Court inquired of the parties whether Plaintiffs'
motion to compel was moot in light of Defendants'
sur-reply. Plaintiffs agreed that the motion was moot except
for continued supplementation of documents, which Defendants
acknowledged they are required to do, and production of
Defendants' privilege log. Although the Court has not
seen the discovery requests or responses, the parties agreed
that Defendants' responses included conditional
objections, which have been found “invalid and
unsustainable” in this district. Therefore, the
Court ordered Defendants to provide in writing a definitive
statement as to whether any documents responsive to the
discovery requests are being withheld and if so, to provide a
privilege log for the withheld documents by February 25,
2019. The Court is mindful of Mrs. Wagner's
circumstances, but this case was filed May 24, 2018, and to
date, not much discovery has taken place, and the discovery
that has occurred has only been produced over the past few
weeks. Plaintiffs have been patient and now must receive the
information to which they are entitled. Plaintiffs'
motion to compel is found as moot except as discussed here.
the Court considered Defendants' motion to extend the
comparative fault deadline. Plaintiffs indicated they opposed
the motion because they received information that the
Carnival was the owner of the trailer, and either way, the
Carnival has personal access to all of the maintenance and
repair documents, as well as the ownership title at issue, so
there is no reason Defendants should not have been able to
file their comparative fault designations by the deadline.
Defendants responded that they have been attempting to get
the ownership title documentation but have not been
successful yet. They believe their requested extension is
reasonable. Further, Defendants want to take the depositions
of Plaintiffs' experts and the trailer manufacturer
before finalizing their designations. Although
Plaintiffs' deadline to respond to the motion to extend
this deadline has not yet passed, the Court informed counsel
that she would be willing to grant Defendants an extension
until March 15, 2019 to file their final comparative fault
designations if Plaintiffs did not object to this shorter
extension (Defendants' motion requested an extension to
April 1, 2019). Plaintiffs responded that they did not
object. Therefore, Defendants' motion for extension of
time is granted in part and denied in part, that is for an
extension of this deadline but only to March 15, 2019.
the Court provided guidance on the parties' dispute over
Plaintiffs' requested Rule 30(b)(6) deposition. It is
clear there is a dispute over who owned the trailer at the
time of the accident. Plaintiffs were informed that the
Carnival owned it, and the insurance coverage also apparently
shows the Carnival owned it. But Defendants say Mrs. Wagner
and her husband bought the trailer and had full ownership of
it at the time of the accident. However, they have not yet
been able to produce the title or documentation from the
sale. At this point, there are enough questions and issues
regarding the trailer's ownership and Mrs. Wagner's
status with the Carnival that the proposed Rule 30(b)(6)
topics appear pertinent and relevant. If a motion were filed
on this issue, the Court would be inclined to allow the Rule
30(b)(6) deposition to proceed on the topics Plaintiffs have
identified. If the testimony is that the Carnival did not own
the trailer, then Plaintiffs are still entitled to obtain
this testimony as well as information about who was
maintaining and inspecting the trailer.
IS THEREFORE ORDERED BY THE COURT that
Plaintiffs' Motion to Compel Discovery Responses (ECF No.
23) is found as moot except as discussed herein. Defendants
shall provide in writing a definitive statement as to whether
any documents are being withheld and if so, provide a
privilege log for the withheld documents by February 25,
IS FURTHER ORDERED that Defendants' Motion for
Enlargement of Time to File Designations of Comparative Fault
(ECF No. 34) is granted in part and denied in part as
discussed herein. Defendants are granted an extension of
time, to and including March 15, 2019, in which to file their
comparative fault designations.